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�2412(d)(1)(A) indicates and courts uniformly have
recognized, must be shouldered by the government.
Respondent has not shown how in light of 75% lost
documents in Fresno related to EIC cases, as well as
the worst error rate in the country, over 54% wrong EIC
assessments, Respondent has at the mere threshold
indicated how its position was substantially justified.
[Reproduced literally.]
Petitioner’s reference is to the Report. (Supra A.
Evidence, 1. National Taxpayer Advocate Report.) Apart from our
unwillingness to accept petitioner’s characterization of what the
Report concludes, we hold it is not unreasonable for respondent
to maintain respondent’s position as to a specific taxpayer, and
not concede the case until that taxpayer has presented the
documentation to show that that taxpayer is entitled to the
credit that that taxpayer has claimed on that taxpayer’s tax
return. In the instant case, respondent was justified in
maintaining the position that petitioner was not entitled to the
claimed earned income credit until petitioner provided
documentation showing that he was entitled to that credit.
It follows that petitioner, although he “substantially
prevailed” (section 7430(c)(4)(A)), is not “the prevailing party”
(section 7430(c)(4)(B)), and so petitioner is not entitled to an
award of reasonable litigation costs under section 7430(a)(2).
We so hold.
D. Qualified Offer
Notwithstanding the foregoing conclusory statement, a
taxpayer may nevertheless be treated as the prevailing party if
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